State Ex Rel. v. School Dist. No. 97 , 186 Okla. 177 ( 1939 )

The majority opinion bases its determination of this important case on the declared principle that after due written demand has been served on public officers to act under sections 5964 and 5965, O. S. 1931, 62 Okla. St. Ann. §§ 372 and 373, the duty to so act thereafter may be measured by the subsequent desires or continuing wishes of one or more of the taxpayers who signed the original demand. I think it unsound to base the determination upon a thought or question so nonessential as the question of the subsequent or continuing attitude of some of those who originally made the demand.

I think something more nearly approaching the merits of the case should be considered and passed upon. Let me make it plain that I do not assert that these named defendants are guilty of the unlawful and fraudulent expenditure of school district funds, as alleged in plaintiff's petition. But if they are guilty, they should make restitution, and if they are entitled to be exonerated on the facts, that should be done.

The rules established by former decisions of this court would surely furnish ample grounds for the excuse or justification of public expenditures, where there is any reason for such excuse or justification, without any enlargement of those rules, or the setting up of any other or new obstacles to the recovery of public moneys wrongfully paid out. I agree, of course, that this penalty statute must be strictly construed, and we have so held in numerous decisions. State ex rel. Shilling v. Okla. City et al., 67 Okla. 18, 168 P. 227; State ex rel. Estill v. Board of Commissioners et al., 119 Okla. 215, 249 P. 394; Vaughn v. Latta, 168 Okla. 492, 33 P.2d 795, and Dowler v. State, 179 Okla. 532, 66 P.2d 1081. (See, also, the other cases cited in these decisions.)

And we have held that the demand, when served upon the officers, must be in complete and strict compliance with the act so that if less than ten signers are taxpayers, or less than ten are residents, or if for any other reason the demand is not complete and sufficient when served, that there is essential noncompliance with the statute. But we have never before held that all this sufficiency of the demand must remain constant and be maintained until compliance with the demand by the public officials, and such is not required of the demand by the statute. In fact, the demand is one of the conditions precedent to filing the taxpayer's action, as we held in the above cited cases. It has served its purpose when it is delivered to and served upon the officials. And if thereafter one of the ten signers should die or cease to become a taxpayer or by removal cease to be a resident, that would not excuse the public board from acting, or protect them from suit for failure to act. It has never been held or contended otherwise so far as I know.

When a demand by ten taxpayers is properly served upon the school board under the above section, the performance by the school board which will protect the members thereof from a penalty action is twofold: First, to institute an action for recovery of the public funds themselves, and second, to diligently prosecute such action.

The second portion of performance is just as essentially important as the first. For if such a suit is filed by the board and thereafter is not diligently prosecuted, then it might well be as barren of result as if no suit had ever been filed, and this could be true even if the school district and the school board had a meritorious right to recover back money unlawfully expended.

If the demand which is in all things sufficient when served upon the board may be remeasured for some insufficiency prior to instituting action by the board, then, after the board had started suit, it would be insisted that the board could also test the demand for insufficiency at any time during the pendency of such suit, and could excuse their lack of diligence in prosecuting the action by showing some subsequent loss of force of the demand by reason of change in attitude of one or more of the demanding taxpayers as in this case, or by death, or removal of residence, or because one or more of them ceased to become taxpayers.

The majority opinion holds in effect that the demand must not only be good and sufficient when it is served, but in effect holds also that the demand must remain in all respects sufficient until complied with or the lapse of a reasonable time for compliance. That is, that during such time, whatever it may be in the particular case, the ten taxpaying signers must continue to live, and dwell in the same territory, and continue to be taxpayers, and also must continue of the same attitude and mind as when they signed the demand. I cannot agree that such represents the legislative intent nor that any such thought is stated in or implied by the provisions of the act.

I think the authorities cited in the majority opinion are wholly inapplicable. They relate to petitions and matters where action may only be taken upon authority of the petition. In these matters in this case the school board always has the authority, without any taxpayer's demand, to sue for the recovery of public money unlawfully expended. If they bring such a suit after being served with written demand, they do not bring the suit by authority of the demand, but by authority already possessed. The purpose of the demand is to call the matter to the attention of the board in the manner provided by statute, and to advise them of the possibility of penalty if they continue to fail to both sue for recovery of the money and diligently prosecute such action. The theory of the demand is that the board already had the authority to so proceed and had failed to do so theretofore. While in the cases cited and relied on in the majority opinion there was no power to take the desired action except after the petition was filed, and then the action was taken upon the petition. It is logical in such case to say that, since the action could only be taken upon a complete and valid petition, the same must remain complete until the action was taken. Otherwise, the action when taken would be without authority.

Even if we have the authority, which I doubt, I see neither occasion, necessity, nor advisibility of approving and creating by this decision a new defense for officers when sued for unlawful and fraudulent expenditure of public funds; that is, the defense that they have been able to procure the withdrawal of some one or more signers from the original statutory demand. The approval and thereby the creation of such a new defense is definitely encompassed in the majority opinion, and I think it is therefore wholly unsound.